M.M. v. Fla. Dep't of Children & Families

• Decision Date: 14 April 2016
• Docket Number: No. SC15–1544.,SC15–1544.
• Parties: M.M., etc., Petitioner, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, et al., Respondents.
• Court: Florida Supreme Court

189 So.3d 134

M.M., etc., Petitioner,

v.FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, et al., Respondents.

No. SC15–1544.

Supreme Court of Florida.

April 14, 2016.

Eugene Francis Zenobi, Criminal Conflict and Civil Regional Counsel, Third Regin, and Kevin Coyle Colbert, Miami, FL, for Petitioner.

Karla F. Perkins, Appellate Counsel, Florida Department of Children and Families, Miami, FL, and Rosemarie Elizabeth Farrell, Appellate Counsel, Florida Department of Children and Families, Orlando, FL, for Respondent Florida Department of Children and Families.

LEWIS, J.

M.M., the Father in this case, seeks review of the decision of the Third District Court of Appeal in M.M. v. Department of Children & Family Services, 170 So.3d 840 (Fla. 3d DCA 2015), on the ground that it expressly and directly conflicts with a decision of the First District in W.W. v. Guardian Ad Litem Program, 159 So.3d 999 (Fla. 1st DCA 2015), on a question of law. The issue before us today is whether a post-dependency order that is subject to future modification for purposes of child welfare and parental visitation is reviewable as a final order by appeal, as an interlocutory order reviewable by appeal, or as a non-final order reviewable by certiorari. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

FACTUAL & PROCEDURAL BACKGROUND

Family History with DCF

The children's history with Respondent Department of Children & Families (DCF) began in 2004, when three reports of abuse were filed. Specifically, it was reported to DCF that the children, A.M. (then four years old) and L.M. (then one year old), were found alone in a very hot and humid house with a knife readily accessible. The children were temporarily placed in a shelter, but ultimately the case was dismissed and the children were returned to the custody of their parents.

In October 2013, the children were placed in shelter care by DCF after a report that A.M. was beaten fifteen times with a belt by her Mother, was told by her Mother that A.M. should kill herself, and was not fed for one night. In addition, L.M. disclosed that she saw her Father, M.M., grab her older sister A.M. by the mouth and push her head against a wall. The Father also kicked, punched, and slapped A.M. in the presence of L.M. A.M. confirmed that she had bruises caused by the Father. The children were subsequently placed in the care of a family friend, and found dependent as to their Father. Both parents were assigned case plans by DCF.

After the Mother completed the therapy and parenting classes prescribed in her case plan, the children were reunified with her. However, the children repeatedly refused to participate in visits with the Father, who had still failed to comply with the case plan or pay child support.

Trial Court Order

In August 2014, a trial court in Miami–Dade County issued an order that terminated supervision by DCF and limited the ability of the Father to seek future visitation to the discretion of the children. The trial court noted the facts that the Mother had completed her post-adjudicatory case plan, while the Father had not completed his plan and had not paid child support. Further, the court considered that the children had repeatedly refused visits with their Father notwithstanding therapist intervention. The court expressly retained jurisdiction for the purpose of making further orders for the welfare of the children.

District Court Proceedings

The Father sought review of the trial court's order by the Third District Court of Appeal. M.M., 170 So.3d at 841. The Father alleged that the trial court denied him due process by terminating DCF supervision without a motion and departed from the essential requirements of the law when it limited his future contact with his children to the sole discretion of the children. The Third District denied the due process claim, reasoning that the Father was provided with notice through the submission of a Judicial Review Social Study Report pursuant to Florida Rule of Juvenile Procedure 8.345(b). The district court, however, granted his second claim and thus quashed the trial court's order to the extent that it limited the Father's contact with the children to the children's sole discretion.

The Third District recognized that there was a conflict among the district courts regarding the process by which orders in dependency proceedings are reviewed. Id. at 841 n. 1 (citing J.S. v. Fla. Dep't of Children & Families, 75 So.3d 808 (Fla. 1st DCA 2011) ; S.P. v. Fla. Dep't of Children & Family Services, 17 So.3d 878 (Fla. 1st DCA 2009) ; R.M. v. Dep't of Children & Families, 19 So.3d 1029 (Fla. 5th DCA 2009) ; M.V.–B. v. Dep't of Children & Family Servs., 19 So.3d 381 (Fla. 2d DCA 2009) ; F.E. v. Dep't of Children & Families, 1 So.3d 305 (Fla. 3d DCA 2009) ). In F.E., the Third District concluded that an order terminating supervision is not appealable because such orders do not necessarily conclude dependency proceedings. Id. (citing §§ 39.521, 39.621, Fla. Stat. (2014) ; Fla. R. Juv. P. 8.345 ; F.E., 1 So.3d 305 ). Therefore, the Third District followed its precedent and treated the Father's appeal as a petition for writ of certiorari. Id.

This review follows.

ANALYSIS

This question presents a pure question of law and is, therefore, subject to de novo review. See Jackson–Shaw Co. v. Jacksonville Aviation Auth., 8 So.3d 1076, 1084–85 (Fla.2008). This Court accepted jurisdiction to resolve the express and direct conflict between the instant case and W.W. In the case below, the Third District treated a petition to review an order to terminate DCF supervision as a petition for a writ of certiorari. In contrast, the First District in W.W. reviewed an order denying a motion to reinstate supervised visitation as a final order on appeal. Because both decisions concern the procedure regarding post-dependency judgment orders that are subject to future modification for purposes of child welfare and parental visitation, we conclude that conflict exists between the Third District's treatment of such orders and that of the First District. To resolve this conflict, we must determine the proper standard of review for these post-dependency orders that anticipate future modification.¹ Based on the plain wording of the relevant rule, the fluid nature of child dependency proceedings, and pertinent statutory law, we conclude that both the legally required and the common sense approach to such post-dependency orders is review by certiorari.

An appeal from a final order is appropriate when judicial labor has ended. S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974) ( "Generally, the test employed by the appellate court to determine finality of an order, judgment or decree is whether the order in question constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to effectuate a termination of the cause as between the parties directly affected."). These final orders are reviewable under Florida Rule of Appellate Procedure 9.110 ("Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-jury Cases").

In addition to the final orders appealable under rule 9.110, rule 9.130 permits review by appeal of certain interlocutory orders. If the non-final order is not listed under rule 9.130, the review must come by certiorari. Keck v. Eminisor, 104 So.3d 359, 363–64 (Fla.2012) ( "Generally, an appellate court may not review interlocutory orders unless the order falls within the ambit of non-final orders appealable to a district court as set forth in Florida Rule of Appellate Procedure 9.130. In addition, under very narrow circumstances, a party may petition for certiorari to seek review of a non-final order not otherwise appealable...."); Cotton States Mut. Ins. v. D'Alto, 879 So.2d 67, 69 (Fla. 1st DCA 2004) ("Jurisdiction to hear an appeal from a nonfinal order is limited to the kinds of orders referred to in rule 9.130 of the Florida Rules of Appellate Procedure."); see also Bergh v. Stephens, 175 So.2d 787, 790 (Fla. 1st DCA 1965) (explaining expressio unius est exclusio alterius, the principle of statutory construction that provides that the mention of one thing in a statute implies the exclusion of another).

The difference between certiorari review and appellate review is important, as the standard of review available when a district court considers a matter by common law certiorari is much higher than when a court reviews a matter as an appeal. See, e.g., R.M., 19 So.3d at 1030–31 (noting the dissonance between certiorari review and review of final appealable orders in the context of dependency matters). An appeal is a matter of right, whereas the common law writ of certiorari is an instrument that allows a superior court to direct a lower tribunal to inform it of the events below in a pending case so that the superior court can review the proceedings for regularity. See Broward Cty. v. G.B.V. Int'l, Ltd., 787 So.2d 838, 842 (Fla.2001). Further, "[t]he [common law] writ functions as a safety net and gives the upper court the prerogative to reach down and halt a miscarriage of justice where no other remedy exists." Id. This discretionary common law writ is not intended to redress mere legal error, but rather to fill the gaps between direct appeal and other prerogative writs. Id. This Court has emphasized that the common law writ functions as an extraordinary remedy, not as a second appeal. Id. When petitioning for certiorari to seek review of a non-final order, the petitioner must establish three elements: "(1) the order ‘depart[s] from the essential requirements of the law,’ and (2) ‘result[s] in material injury for the remainder of the case (3) that cannot be corrected on post-judgment appeal.’ " Keck, 104 So.3d at 364 (quoting Williams v. Oken, 62 So.3d 1129, 1132 (Fla.2011) ).

The First District and the Father in the case below are of the view that in light of a 2014 amendment to rule 9.130(a)(4)...